Clamping Down on Free Speech on Campus

The Foundation for Individual Rights in Education (FIRE) has just released a 40-page report called Spotlight on Speech Codes 2012, which finds that the great majority of American universities limit what may be said on campus. Although the trend for the past four years has been toward a slight easing of restrictions, this may be threatened by “Anti-Bullying” legislation, and the Obama administration’s aggressive enforcement of Title IX provisions against “sexual harassment and sexual violence.”

Under US law, almost all speech in public settings is protected by the First Amendment. There are exceptions—fighting words, incitement, harassment, threats and intimidation, obscenity and defamation—but case law defines them very narrowly. Many college speech codes, however, define them broadly, so as to prohibit constitutionally protected speech. For example, “obscenity” in the legal sense refers only to highly graphic sexual material, and does not cover the four letter words popularly called “obscenities.” Yet some colleges ban “indecent, profane or vulgar language.”

Politically incorrect ideas are often suppressed on the pretext of combating harassment. Legally, “harassment” refers to “extreme and usually repetitive behavior—behavior so serious that it would interfere with a reasonable person’s ability to receive his or her education.” An example of this was a 1999 case that involved “repeated attempts to touch the victim’s breasts and genitals together with repeated sexually explicit comments directed at and about the victim.”

Telling off-color jokes or expressing supposedly offensive racial views is not harassment, and the Bush administration’s Department of Education sent a letter to all colleges and universities making this clear. Yet students at California State University at Chico can face sexual harassment charges for “reinforcement of sexist stereotypes through subtle, often unintentional means” which include “references to both men and women as necessarily heterosexual [or] continual use of generic masculine terms to refer to people of both sexes.” A sentence like “Every student should raise his hand,” could get you in trouble at Chico.

The “threats and intimidation” exception to free speech refers only to “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.”

This, too, is very broadly interpreted. In September 2011, Professor Jim Miller of the University of Wisconsin was threatened with criminal charges for two satirical postings he put up outside his office. The first included a line from the script of the television series Firefly. “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.”

After the campus police chief took that down, Professor Miller put up a satirical warning against “fascism” that read in part: “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.” Sure enough, the University’s “threat assessment team” removed that, too, and accused Prof. Miller of making “implied threats of violence.” The University at first tried to defend itself by citing the Virginia Tech massacre, but reversed course after a public campaign led by FIRE.

“Incitement” is another pretext for cracking down on unpopular views. Administrators claim that offensive or provocative speech will “incite” those who disagree with it to violent acts. But the legal meaning of incitement is “advocacy of the use of force or of law violation . . . likely to incite or produce such action.” You cannot “incite” people who disagree with you.

Many colleges have also adopted policies that punish “incivility.” Promoting civility may be a fine goal, but the First Amendment protects uncivil speech.

Colleges try to regulate what students can say in email or on internet sites. Florida Gulf Coast University in Fort Meyers prohibits the use of email for “racially or sexually charged messages, jokes or cartoons.” Macalester College in St. Paul, Minnesota, prohibits students from posting anything on Facebook or Twitter that is “racially, sexually, ethnically or religiously objectionable.”

One law student at Syracuse University published a blog about student life that included an explicit disclaimer saying it was satire. A “faculty prosecutor” told him there were “extremely serious” charges against him, and the school pursued him for months and threatened to expel him. Again, only a public campaign embarrassed the school into dropping charges.

Needless to say, tracking down “bias and hate” is serious business. As FIRE notes, many campuses have set up elaborate regulatory frameworks for this purpose and cannot let them sit idle.

Evergreen State College promises to stamp out “conduct, speech or expression that is motivated by bias based on perceived race, color, religion, ethnic/national origin, gender expression, sex, age, disability or sexual orientation identities but does not rise to the level of a crime.” That covers a lot. At Clark University, a “hate incident” can even be based on “social/political affiliation.”

A popular way to discourage student groups from hosting politically incorrect speakers is to claim that they would require heightened security. The (usually conservative) student group is then billed for it. The Supreme Court ruled this unconstitutional in 1992, but plenty of schools persist in it.

Finally, some colleges have restricted “controversial” speech to small or remote areas on campus known as free speech zones, and may require student groups to register up to 48 hours in advance to use these zones. This is not free speech.

First Amendment protections legally apply only to public institutions; private schools have greater latitude in restricting speech. However, only a few private institutions warn prospective students about the speech restrictions they will face. If, instead, they claim to support free speech but enforce speech codes, they may be guilty of breach of contract.

FIRE rated the speech policies of 392 American colleges and universities and found that 256 of them (65 percent) clearly and substantially restrict freedom of speech. They got a “red light” rating.

Another 113 schools (30 percent) have policies that probably restrict some constitutionally protected speech, but that are either vague or apply narrowly. These got a “yellow light” rating.

FIRE gave a “green light” rating for adequate protection of free speech to only 14 schools (3.6 percent):

Arizona State University, Black Hills State University, Carnegie Mellon University, Cleveland State University, Dartmouth College, James Madison University, Shippensburg University of Pennsylvania, The College of William & Mary, University of Nebraska-Lincoln, University of Pennsylvania, University of South Dakota, University of Tennessee-Knoxville, University of Utah, University of Virginia.

Interestingly enough, three are in Virginia.

FIRE did not rate nine schools, including the military academies.

As noted above, the trend of the past four years has been in the direction of liberalization. This progress may be threatened, however, by two recent developments.

One is “Anti-Bullying” legislation. A 2011 New Jersey law defines bullying to include anything that “has the effect of insulting or demeaning any student or group of students.” This seems to allow anyone who feels he was demeaned or insulted—or pretends he was—to decide that the law has been broken. The legislation includes no “reasonable person” standard, so students must be careful not to say anything that might be perceived by anyone, however unreasonably, as insulting or demeaning. A similarly worded bill is now before Congress.

But the greatest current threat to student rights, in FIRE’s view, comes from the Department of Education’s Office for Civil Rights (OCR). On April 4, 2011, the OCR sent a letter to all colleges and universities threatening to withhold federal money if schools do not submit to two new requirements under Title IX, which is supposed to eliminate sex discrimination.

One new rule requires that students accused of sexual harassment or assault be judged according to the civil-trial standard of “preponderance of the evidence.” This means they must be convicted if found even just slightly more likely than not to have committed an offense, rather than according to the criminal-trial standard of “beyond a reasonable doubt.” When Stanford University got the letter, it was so worried about losing funding that it changed the evidentiary standard for an accused student in the midst of his hearing process! He was found guilty.

Another new standard is that if a student judged guilty of a sexual offence has the right to appeal, the accuser must have the same right. This means double jeopardy for the accused. The OCR can get away with this because university hearings are not bound by the standards that apply to criminal courts. FIRE concludes that schools will fall in line because they “will almost certainly not risk losing their federal funding.”

Ideally, a university is supposed to contain a universe of ideas. It is not easy to achieve that goal when the authorities restrict speech.